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Alternative disputes resolution, popularly known as ADR, has become very popular worldwide as an effective alternative to litigation. As it is an alternative to litigation, it is called ‘Alternative’ Dispute Resolution. It encourages litigants to avoid lengthy and costly court trials, and in some cases, avoid legal processes altogether.
Alternative dispute resolution (ADR) is a method of resolving disagreements without going into litigation. This method provides more flexibility, faster case disposal, less expensive and time consuming. These benefits resulted in noticeable increase in the use of ADR mechanism worldwide.
Negotiation, Conciliation, mediation, arbitration are the forms of ADR. Besides, Plea bargaining is an alternative dispute resolution strategy that involves a series of conversations and bargaining. With the fast-growing trade and commerce in today’s world, speedy and effective dispute resolution has become an integral part, as disagreements are becoming unavoidable aspect of the scenario.
The traditional technique of dispute resolution is more expensive as well as time consuming. Thus, the ADR mechanism has become a popular choice to save time and money effectively. Alternative dispute resolution got much attention during the 1990s. The principal form of ADR nowadays is mediation as it is the cheapest, neutral, independent, flexible, and effective of ADR processes. Other variants include arbitration, conciliation, early neutral evaluation, and mini trials. There is also the traditional technique of inter-party negotiation--a technique which for many years has brought about the settlement of most of all civil cases commenced in the High Court. For example, backlog of cases in Indian courts has been an alarming issue since decades and here comes ADR to rescue. This scenario is not prevailing only in India as ADR has become a big relief for various commercial and corporate entities worldwide.
The use of ADR had grown worldwide and thus it needs to be fostered accordingly to make it more effective and accessible to all. Litigation may not be best option in all cases, and thus there is a need to increase awareness of ADR among people. Types of Alternative Dispute Resolutions: Arbitration, Mediation, Conciliation, and Negotiation are the most prevalent types of ADR proceedings for individuals, organisations, national, and international issues. Let us discuss in brief:
Arbitration:
Arbitration 'Arbitration' is a legal procedure which help in resolving dispute between two parties by appointing a neutral and experienced third party called Arbitrator for assisting them in reaching an agreement. It encourages the mutual settlement of disputes between two or more parties through the appointment of an arbitrator. An arbitrator appointed to acts as a judge. In the presence of both parties, the arbitrator conducts the arbitration procedure, hears both sides' arguments, and renders a verdict known as a 'award,' which is legally enforceable and binding on both parties.
Parties at their discretion select an arbitrator. Both parties are free to choose their own arbitrators, and the chosen arbitrator chooses a third arbitrator to serve as the chair of the arbitration. If any party wants to nominate more than one arbitrator, it must be specified in the contract. In cases of international commercial issues, arbitration is the most preferred form of conflict resolution.
International business arbitration is governed by the UNCITRAL Model Law on International Commercial Arbitration.
Mediation:
The widely used from of ADR is “Mediation‟, for being neutral, independent, flexible, effective and to create a ‘win-win’ situation for the parties. According to Black Law's Dictionary, Mediation is described as "a form of non-binding dispute resolution using a neutral third party who tries to help the opposing parties reach a mutually agreeable solution,".
Mediation is a process in which two parties meet to try to resolve their disagreement with the help of a third party. A third person is referred to as a Mediator. The mediator is a professional, neutral third party who assists the parties in resolving their disagreement or conflict. Mediation is a completely voluntary practise with no legal ramifications. Thus, mediation is said, to usually focus on the future rather than the past behaviour. Historically, mediation is quite a recent arrival in the judicial arena, and it was noted to have originated in the United States of America in the concluding half of the twentieth century.
In Mediation process the parties may express themselves freely and make offers and demands as per their desires.
Conciliation: Similarly, like Mediation, Conciliation is a voluntary and flexible process in which a third party termed as Conciliator assists the disputing parties to reach an agreement between them. However, there is a slight difference between mediation and conciliation that conciliation begins with a proposal to conciliate made to any of the parties. A conciliator's job is to communicate the remarks, requests, or wishes of one party to the other. The conciliator’s presence is to be communicated orally or in writing by the parties. The conciliator is to be chosen by the parties in the same way they choose the arbitrator or mediator in arbitration or mediation. The conciliation procedure begins with the conciliation invitation by one of the parties to the other party, and it is up to the other party to accept or decline the invitation to conciliate or settle.
Negotiation: Negotiation does not involve any third party for the resolution of dispute like arbitration, conciliation or mediation does. Negotiation is a dispute resolution process in which two or more parties communicate directly or indirectly to each other than their respective arguments before reaching to an agreement or closure. Negotiation is discretionary upon the parties to accept or reject the arguments of the other party.
However, though ADR is faster and cheaper than litigation but if it is unsuccessful in resolving the disputed issues, it may increase the cost and delay in resolving dispute. Therefore, ADR may be used to settle disputes which cannot not be resolved by conventional inter-party negotiation. Also, to facilitate earlier resolution to disputes which may take longer in traditional way. Previously ADR is used to resolve disputes in economic concerns but now its scope has been expanded and it’s practise has been adopted more widely. Mediation centres has been set up by courts to settle disputes through mediation. Various amendments and legislation have been introduced to broaden the scope of ADR, but these initiatives will be useless unless the parties make up their minds to resolve their dispute through the ADR system. Even if they are forced to do so, the outcome will be meaningless because mutual consent to a decision can never be reached in such circumstances.
Thus, public awareness regarding Alternative Resolution Dispute is very crucial. Although after Covid situation we have seen a shift towards ADR mechanism. As things were done in virtual form with numerous advantages and disadvantages. Lastly, we need to look forward to the ADR mechanism on a large scale keeping in mind all of the above points discussed, to ensure that justice is provided to all sections of the society in less time and at a lower cost, as the right to speedy justice is a fundamental right.
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